Court orders VA to act on new Agent Orange findings

Tom Philpott, Special to the Daily Press

An estimated 200,000 Vietnam veterans suffering from three diseases newly associated with exposure to Agent Orange are closer to receiving disability compensation following an appeals court order Aug. 2 directing the Department of Veterans Affairs to publish a final implementing regulation within 30 days.

In response to a lawsuit brought by a coalition of veterans' service organizations, the U.S. Court of Appeals instructed the VA to issue by Sept. 1 a final regulation authorizing payment of claims for ischemic heart disease, Parkinson's disease or B-cell leukemia for any veteran who stepped foot in Vietnam during the war, or their survivors.

VA has been urging veterans with these diseases to file claims immediately because payments, when they begin, will be retroactive to the filing date. VA lawyers conceded to the court that VA had missed several deadlines set in the Agent Orange Act for reviewing the latest science report and for publishing rules to expand claims eligibility to these diseases.

Still, they argued that VA could not publish a final regulation until the Office of Management and Budget completed its own review of the draft regulation. They also argued that the delays were reasonable given the complexity of the issues and the costs involved, and that veterans are protected from financial harm if they just file their claims immediately.

The appeals court rejected those arguments.

After final a regulation is published, VA still will have to wait 60 days under the Congressional Review Act to begin paying claims, given the cost of adding these three diseases to the list of ailments presumed caused by exposure to defoliants used in Vietnam. That would give Congress time to block the regulation, though that seems unlikely given that funds already have been approved for anticipated first-year and retroactive payments.

If OMB completes its review soon, allowing rule publication before Sept. 1, payments could begin in October. If VA waits until Sept. 1 to publish its regulation, payments wouldn't begin before Nov. 1.

The Senate Veterans Affairs Committee still intends to hold a Sept. 23 hearing on how VA officials and independent scientists reached their decision on presuming these diseases were caused by Agent Orange.